Citation Nr: 0534478
Decision Date: 12/22/05 Archive Date: 01/10/06
DOCKET NO. 03-02 576 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for peripheral neuropathy
of the extremities, claimed as a residual of herbicide
exposure.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the
United States
ATTORNEY FOR THE BOARD
Purnima Boominathan, Associate Counsel
INTRODUCTION
The veteran had active military service from October 1966 to
October 1969.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a September 2002 rating decision issued by the
Regional Office (RO) of the Department of Veterans Affairs
(VA) in Waco, Texas.
In February 2003, the veteran requested a hearing at the RO,
however, in May 2003, the scheduled hearing was cancelled at
the veteran's request.
FINDING OF FACT
The veteran's peripheral neuropathy of the extremities is
related to service.
CONCLUSION OF LAW
Resolving doubt in the veteran's favor, peripheral neuropathy
of the extremities was incurred in service. 38 U.S.C.A. §§
1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38
C.F.R. § 3.303 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran is seeking service connection for peripheral
neuropathy of the extremities due to herbicide exposure in
Vietnam.
Service connection may be granted for disability arising from
disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2005). For
the showing of chronic disease in service, there is required
a combination of manifestations sufficient to identify the
disease entity and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word "chronic." When
the fact of chronicity in service is not adequately
supported, then a showing of continuity after discharge is
required to support the claim. 38 C.F.R. § 3.303(b) (2005).
Service connection may be also granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2005).
Continuity of symptomatology is required only where the
condition noted during service is not, in fact, shown to be
chronic or where the diagnosis of chronicity may be
legitimately questioned.
The United States Court of Appeals for Veterans Claims
(Court) has held that, in order to prevail on the issue of
service connection, there must be (1) medical evidence of a
current disability; (2) medical, or in certain circumstances,
lay evidence of in-service incurrence or aggravation of a
disease or injury; and
(3) medical evidence of a nexus between the claimed in-
service disease or injury and the present disease or injury.
Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond
v. West, 12 Vet. App. 341, 346 (1999).
A veteran is presumed to have been exposed to Agent Orange if
he served in the Republic of Vietnam during the period
beginning on January 9, 1962, and ending on May 7, 1975. 38
U.S.C.A. § 1116(f) (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.307(a)(6)(iii), 3.313 (2005).
VA regulations provide that, if a veteran was exposed to an
herbicide agent during active service, presumptive service
connection is warranted for the following disorders:
chloracne or other acneform disease consistent with
chloracne; type 2 diabetes (also known as type II diabetes
mellitus or adult-onset diabetes); Hodgkin's disease;
multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute
peripheral neuropathy; porphyria cutanea tarda; prostate
cancer; respiratory cancer (cancer of the lung, bronchus,
larynx, or trachea); and soft-tissue sarcoma (other than
osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or
mesothelioma). 38 C.F.R. § 3.309(e) (2005). With respect to
acute or subacute peripheral neuropathy, the regulations
require that the disability become manifest to a degree of 10
percent or more within a year after the last date on which
the veteran was exposed to an herbicide agent during active
service. 38 C.F.R. § 3.307(a)(6)(ii) (2005).
However, in Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994),
the U.S. Court of Appeals for the Federal Circuit found that,
under the Veterans' Dioxin and Radiation Exposure
Compensation Standards Act, a claimant was not precluded from
presenting proof of direct service connection between a
disorder and exposure to Agent Orange, even if the disability
in question was not among statutorily-enumerated disorders
which were presumed to be service related, the presumption
not being the sole method for showing causation. Hence, the
claimant may establish service connection for peripheral
neuropathy by presenting competent evidence suggesting that
the disability was caused by inservice Agent Orange exposure.
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.303; Gilbert v
Derwinski, 1 Vet. App. 49 (1990).
The standard of proof to be applied in decisions on claims
for veterans' benefits is set forth in 38 U.S.C.A. § 5107
(West 2002 & Supp. 2005). A veteran is entitled to the
benefit of the doubt when there is an approximate balance of
positive and negative evidence. See also, 38 C.F.R. § 3.102
(2005). When a veteran seeks benefits and the evidence is in
relative equipoise, the veteran prevails. See Gilbert v.
Derwinski, 1 Vet. App. 49 (1990). The preponderance of the
evidence must be against the claim for benefits to be denied.
See Alemany v. Brown, 9 Vet. App. 518 (1996).
Service personnel records disclose that the veteran served in
Vietnam. Therefore, it is presumed that he was exposed to
herbicides.
The veteran's service medical records, including the reports
of entrance and separation examinations, did not contain a
complaint, finding, or history of peripheral neuropathy.
Current medical evidence shows that the veteran currently
suffers from peripheral neuropathy of the extremities. In
July 2002, the VA examiner diagnosed peripheral neuropathy in
a stocking/glove-type distribution. In June 2004, the VA
examiner diagnosed peripheral neuropathy. Additionally,
records of a private neurologist, covering the period from
September 2001 to August 2003, disclose a diagnosis of
peripheral neuropathy of the extremities following the
neurologist's examination and an EMG/nerve conduction study.
As peripheral neuropathy is currently shown, the remaining
question is whether the peripheral neuropathy is related to
service.
On examination and in various statements, the veteran
reported that he experienced hot and cold sensations in his
feet during and since his service in Vietnam and that the
symptoms have increased in severity. The veteran is
competent to describe the symptoms of an injury or illness
during service that are within his personal knowledge,
namely, that which he perceives through his senses, such as
hot and cold sensations in his feet. Not only is the veteran
competent to prove that he exhibited such symptoms during
service, his statements are credible. See Layno v. Brown, 6
Vet. App. 465, 470 (1994).
There is also competent medical evidence of a nexus between
the claimed in-service symptoms and current peripheral
neuropathy. During the veteran's June 2004 VA examination,
the veteran told the examiner that he had been seeking
treatment from physicians for his symptoms since the 1970s,
however, he was not diagnosed with peripheral neuropathy
until 2001. Based on his examination, a review of the
veteran's claims file, and the veteran's medical history, the
examiner concluded that it was at least as likely as not that
the veteran's peripheral neuropathy was caused by his
exposure to Agent Orange in Vietnam. The examiner noted that
it was likely that the veteran previously had symptoms of
peripheral neuropathy which were not diagnosed until
recently.
Additionally, the 2004 VA examiner's opinion and diagnosis
are supported by the veteran's private neurologist, who
diagnosed the veteran with peripheral neuropathy and linked
the peripheral neuropathy to the veteran's Agent Orange
exposure in Vietnam. Both the VA examiner and the private
neurologist excluded all other causes of peripheral
neuropathy. The Board notes that there is no medical opinion
of record that contradicts these opinions.
Thus, while the evidence does not show a diagnosis of
peripheral neuropathy within 1 year of service in Vietnam,
the Board finds that the veteran presented proof of direct
service connection between a disorder and exposure to Agent
Orange by way of multiple doctors' opinions. See Combee.
In light of all the evidence in the record, including the
veteran's statements, the July 2002 and June 2004 VA
examinations, private medical records and examinations, and
resolving doubt in favor of the veteran, the Board finds that
the veteran has established that he has peripheral neuropathy
of the extremities that began in service.
The Board has considered the veteran's claim with respect to
the Veterans Claims Assistance Act of 2000, 38 U.S.C.A.
§§ 5100 et. seq. (West Supp. 2005). Given the favorable
outcome as noted above, no conceivable prejudice to the
veteran could result from this adjudication. See Bernard v.
Brown, 4 Vet. App. 384, 393 (1993).
ORDER
Service connection for peripheral neuropathy of the
extremities is granted, subject to the laws and regulations
regarding the payment of monetary benefits.
____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs